Alaska Ranger's owners seek to limit liability in lawsuits | Seattle Times Newspaper

The legal maneuvering over the deadly sinking of the Alaska Ranger in the Bering Sea in March has begun, with the boat's owners asking a federal judge to limit — or remove entirely — any liability for the tragedy even as lawsuits from surviving crew members and families of the dead pile up. So far, 21 personal-injury and two wrongful-death lawsuits have been filed in King County Superior Court, each accusing Seattle-based Fishing Company of Alaska — the owner of the 189-foot head-and-gut processor — of negligence and operating an unseaworthy vessel. Several other lawsuits are pending, including one to be filed by the family of the ship's captain, 66-year-old Eric Peter Jacobsen, of Lynnwood, one of five crewmen who died, according to maritime lawyer Steven Fury, who represents Jacobsen's widow."

Local News | Alaska Ranger's owners seek to limit liability in lawsuits | Seattle Times Newspaper, June 29, 2008.

Steven Fury and his partner Bill Bailey have both taught Trial Ad at the UW.

The Innocent Man

I just finished The Innocent Man by John Grisham. He applies his storytelling skills to non-fiction -- the interlocking sad stories of a couple of men who were wrongly convicted of a rape and murder and exonerated eleven years later.

Personally, I liked this better than the lawyer thrillers like The Firm -- no chase scenes, no piles of money, no beautiful babes on the beach, just the slow and flawed investigation, the thin prosecution, the incomplete defense, and the years of suffering of a mentally ill man in prison.

Wrongful convictions occur every month in every state in this country, and the reasons are all varied and all the same -- bad police work, junk science, faulty eyewitness identifications, bad defense lawyers, lazy prosecutors, arrogrant prosecutors.

p. 308.

The book is in the library (or will be, as soon as I return it): KF224.W5535 G75 2006 at Good Reads.

Legal Technician Proposal

There are a whole lot of people who need legal assistance who can't afford or don't have access to lawyers. One response to this problem is a proposal to license trained "legal technicians" to perform some tasks currently performed only by lawyers. The July 2008 issue of the Washington State Bar News has a special feature on the issue:

• Legal Technicians: Helpful or Harmful? (editor's note)


• A Rationale for the Proposed Legal Technicians Limited Practice Rule, by Gregory R. Dallaire


• The Washington State Supreme Court Should Decline to Adopt the Family Law Legal Technician Proposal, by Mark A. Johnson and David S. Heller


• Legal Technicians: Myths and Facts, by Rita L. Bender and Paul A. Bastine


• Legal Technicians Aren't the Answer: The Family Law Section's Executive Committee Weighs In, by Jean Cotton

The Practice of Law Board's report (from Jan. 2008) is here.

Do you have an opinion? Tell the Board of Governors before its Aug. 1 meeting, when this is on the agenda.

Ideology-Based Hiring at Justice Broke Laws, Investigation Finds

Senior Justice Department officials broke civil service laws by rejecting scores of young applicants who had links to Democrats or liberal organizations, according to a biting report issued yesterday.

The report by the Justice Department inspector general and the Office of Professional Responsibility concluded that a pair of high-ranking political appointees who are no longer with the department had violated department policy and the Civil Service Reform Act by using ideological reasons to scuttle the candidacy of lawyers who applied to the elite honors and summer intern programs.

Ideology-Based Hiring at Justice Broke Laws, Investigation Finds, Wash. Post, June 25, 2008, at A11.

The full report, An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program, is 115 pages.

War over Tort System -- Chamber vs. Plaintiffs' Bar

Sunday's New York Times had a long piece reviewing the battle (carried out through PR, lobbying, and election campaigns) between the United States Chamber of Commerce (and its Institute for Legal Reform) and plaintiffs' lawyers (represented by the American Association for Justice). Jonathan D. Glater, To the Trenches: The Tort War is Waging on, N.Y. Times, June 21, 2008.

Justices Cut Damages Award in Exxon Valdez Spill

The Supreme Court on Wednesday reduced what had once been a $5 billion punitive damages award against ExxonMobil to about $500 million. The ruling essentially concluded a legal saga that started when the Exxon Valdez, a supertanker, struck a reef and spilled 11 million gallons of crude oil into the Prince William Sound in Alaska in 1989.

* * *

The decision may have broad implications for limits on punitive damages generally. Punitive damages, which are meant to punish and deter, are imposed on top of compensatory damages, which aim to make plaintiffs whole.

Justice David H. Souter, writing for the majority in the 5-to-3 decision, said a ratio between the two sorts of damages of no more than one-to-one was generally appropriate, at least in maritime cases. Since Exxon has paid about $507 million to compensate more than 32,000 Native Alaskans, landowners and commercial fishermen, Justice Souter said, it should have to pay no more than that amount in punitive damages.

That works out to $15,000 for each plaintiff for compensation and $15,000 more as punitive damages.

Justices Cut Damages Award in Exxon Valdez Spill, N.Y. Times, June 26, 2008 (it's dated tomorrow but it's on the web today).

The opinion in Exxon Shipping Corp. v. Baker is here.

Supreme Court Rejects Death Penalty for Child Rape

The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.

Supreme Court Rejects Death Penalty for Child Rape, N.Y. Times, June 26, 2008 (it's dated tomorrow, but it's on the web today). The case is Kennedy v. Louisiana, here.

Sonics Trial

I've been busy with other stuff lately and haven't said a thing about the Sonics trial -- the city's effort to keep the NBA team in town. But you have other good sources. The Seattle Times has devoted a blog to it, with live reporting during the day: Sonics Trial | The Seattle Times. A sidebar links to stories from the newspaper. And of course, the PI has been covering it too. Just go to seattlepi.com and search for "sonics trial."

IRS Blesses Law School Student Loan Forgiveness Programs

If your law school has a Loan Repayment Assistance Program and you take a job that qualifies you (legal services, public defense, etc.), will the help repaying your loan be taxable as "income"? The IRS has issued Rev. Ruling 2008-34 answering no -- good news for the programs and the graduates who will benefit from them. TaxProf Blog: IRS Blesses Law School Student Loan Forgiveness Programs, June 20, 2008.

Thanks: Mary Hotchkiss.

National Conference on Homeless Youth and the Law

The American Bar Association Commission on Homelessness and Poverty, American Bar Association Commission on Youth at Risk, and the National Network for Youth, in collaboration with Casey Family Programs, are wrapping up a two-day working conference -- the National Conference on Homeless Youth and the Law, June 19-20, 2008, at the University of Washington School of Law.

Why here? (Why not here?) One reason to gather the participants here is the strong leadership from two local attorneys (and UW alumni): Casey Trupin, who founded Street Youth Legal Advocates of Washington when he was a law student and went on to work on issues of homeless youth at Columbia Legal Services, is the chair of the ABA Commission on Homelehttp://www.blogger.com/img/gl.link.gifssness and Poverty. And Bobbe J. Bridge, who just retired from the Supreme Court bench and is the founder and President of the Center for Children & Youth Justice, chaired the advisory committee for the conference.

The conference received support from the Seattle University School of Law, the University of Washington School of Law, the William H. Gates Public Service Law Program, the Bill & Melinda Gates Foundation, Garvey Schubert Barer, Ron and Janice Perey, and the Perey Law Group. Students from SYLAW helped with the conference -- e.g., taking minutes in the working groups.

Right now, I'm listening to representatives from breakout groups on different issues present recommendations -- the seeds of model laws or administrative action. For instance, some issues:

• Out the outset, drafters should consider definitions. What's "youth"? What's "homeless"? In come contexts, "youth" might include anyone up to age 24; in other contexts, it might only need to be 18. And how young do you want to start some programs?

• What should happen to youth involved in status offenses? (These are offenses that, by definition, cannot be committed by adults). The speaker recommends that options (such as safe houses and treatment programs) should be developed so the youth are not sent to secure juvenile detention facilities as a first resort. Police and other first responders should receive training in how to deal with the special needs of these youth.


• What are the barriers to homeless youth (and, more generally, youth in unstable housing situations, such as foster care) attending school? What can be done to make schooling available to and effective for them? Is there a way to make educational funding follow them as they move?


• What are the issues concerning health care? When should a minor be able to give consent to treatment? For what procedures? From which practitioners? (The speaker recommends that it not be restricted to doctors.)


• What housing issues arise? Consider the right to enter into contracts -- maybe the law should be changed to allow at least some minor to enter into leases. (It's probably a good idea, the speaker says, to have many contracts by minors still be voidable.)


• What about emancipation? The speaker raises the possibility of partial emancipation -- e.g., a teen could be responsible for her own shelter but the parents would still be liable for medical benefits. Also: only the young person should have the ability to petition to emancipation (the parents shouldn't be able to go to court and say, in effect, "I'm tired of being responsible for my child.").


• The family law group looked at non-parental custody of the youth; the youth as parents; domestic violence and access to protective orders. Minors should be able to get protective orders against parents and parents' partners. The group would also like to expand the definition of "dating" to increase access to protective orders. What mechanism should be used for a youth to get a protective order against a parent without going through child protective services? (Don't want to set up a process that actually increases youth homelessness.) What would make youth able to get their protective orders enforced when they have a lot of distrust for the police (and might have records or outstanding warrants)?

• Other issues:
• Income assistance
• Right to counsel
• Possible changes in foster care system
• Problems of youth aging out of foster care system or leaving juvenile justice system without good support from family or community.
• Problems of homeless immigrant youth. Another problem: youth who are U.S. citizens but whose parents are deported.
• Problems of homeless youth who are lesbian, gay, bisexual, transgender, or queer (LGBTQ).
  

One theme that runs through all the issues is the need for coordination among different agencies -- e.g., shelters, mental health services, schools, substance abuse programs, law enforcement, and the courts.

New Forms and Instructions from Wash. Courts

Here's a notice I got from the Washington courts (slightly edited):

The Administrative Office of the Courts and the Pattern Forms Committee published new and updated forms to implement 2008 legislation. Check the List of All Forms for updated Domestic Relations, Domestic Violence Protection Order, Juvenile Court, and Misdemeanor Judgment and Sentencing forms. You can identify the new and updated forms by their Last Revised date of 6/2008.

In addition to the updated forms, updated instructions for protection orders are available:

• The DVi 02.015, Temporary Order for Protection and Notice of Hearing instruction is available on the List of All Forms, and here.
• The SAi01.015, Petition for Sexual Assault Protection Order instruction is available on the List of All Forms, and here.

Summary of Changes memoranda will be posted as they become available next week, here.

(You, too, can get email updates from the courts. Just select what you want from this page.)

Cy Pres and Class-Action Funds in Washington

Someone recently asked me about the practice of directing some funds from class action settlements to legal aid organizations. I didn't know much at all, but I found and article in the Washington State Bar News that explains it: Andrea D. Axel and David A. Leen, Unclaimed Class-Action Funds Offer Hope for Equal Justice, Wash. St. B. News, July 2007:

In a groundbreaking move in 2006, the Washington State Supreme Court codified a common-law practice into Civil Rule 23, requiring that at least 25 percent of class-action residual funds in state cases be disbursed to programs that provide legal aid for those in need. Washington is one of the first states to adopt such a rule. While its ultimate impact remains to be seen, supporters of legal aid in Washington are hopeful that the new rule will generate significant funding to provide access to the civil justice system for all Washington’s residents.

The provision is in CR 23(f):

(f) Disposition of Residual Funds.

(1) "Residual Funds" are funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorneys' fees, and other court-approved disbursements to implement the relief granted. Nothing in this rule is intended to limit the parties to a class action from suggesting, or the trial court from approving, a settlement that does not create residual funds.

(2) Any order entering a judgment or approving a proposed compromise of a class action certified under this rule that establishes a process for identifying and compensating members of the class shall provide for the disbursement of residual funds. In matters where the claims process has been exhausted and residual funds remain, not less than twenty-five percent (25%) of the residual funds shall be disbursed to the Legal Foundation of Washington to support activities and programs that promote access to the civil justice system for low income residents of Washington State. The court may disburse the balance of any residual funds beyond the minimum percentage to the Legal Foundation of Washington or to any other entity for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class.

Occupational Safety Prosecution

A former Justice Department official -- now a law professor at Michigan -- urges Congress to amend occupational safety laws. David M. Uhlmann, The Working Wounded, N.Y. Times, May 27, 2008.

An employer insisted his employees clean out a cyanide tank with no protective gear. After a couple of hours in the tank, a 20-year-old man was neurologically damaged for life.

My colleagues and I were shocked to learn that an employer who breaks the nation’s worker-safety laws can be charged with a crime only if a worker dies. Even then, the crime is a lowly Class B misdemeanor, with a maximum sentence of six months in prison. (About 6,000 workers are killed on the job each year, many in cases where the deaths could have been prevented if their employers followed the law.) Employers who maim their workers face, at worst, a maximum civil penalty of $70,000 for each violation.

In this case, the Justice Department successfully prosecuted the employer for environmental crimes. Uhlmann believes that the occupational safety laws should be strengthened to cover this situation and to increase penalties when the employer's actions cause death.

If Your Lawyer Wants You Executed - TIME

If Your Lawyer Wants You Executed - TIME, June 2, 2008:

In 1990, Curtis Osborne, a small-time cocaine dealer and addict, killed two people in a dispute over $400. His crime revulsed the town of Griffin, Georgia, one measure of which was the bigoted remark a local inmate reported hearing at the jail: "That little -- [racist slur] deserves the chair."

As repulsive as the remark was on its own, far more disturbing was the fact that the person alleged to have uttered it was Osborne's own court-appointed lawyer. And somehow, through years of appeals in state and federal courts, no tribunal has squarely confronted this basic but fundamental question: is a person on trial for his life entitled to a lawyer who does not hold him in contempt and believe he should be executed?

Loan Repayment Assistance Program | UW School of Law - Campaigns

The legislature appropriated $250,000 for a loan repayment assistance program (LRAP) for UW law students who go into public interest jobs. It will add up to another $250,000 to the endowment as matching funds for private gifts made during the 2007-2008 fiscal year. The fiscal year ends June 30 and the school is approaching the goal. If you want to support this program, now's a great time, because of that match. Loan Repayment Assistance Program | UW School of Law - Campaigns

Lawyer Accused of Billing County for More than 24 Hours of Work in a Day | ABA Journal - Law News Now

Lawyer Accused of Billing County for More than 24 Hours of Work in a Day | ABA Journal - Law News Now:

An Illinois lawyer who represented indigent juveniles for Cook County, which includes Chicago, has been accused of billing for more than 20 hours of daily work on nearly 90 different days.

King County's $70M budget crisis: Cuts in courts, law enforcement warned

Local News | King County's $70M budget crisis: Cuts in courts, law enforcement warned | Seattle Times Newspaper, June 6, 2008:

Responding to a nearly $70 million estimated budget shortfall in King County, local criminal-justice leaders said Thursday they plan to move thousands of property-crime, forgery and drug cases to lower-level courts and cut investigations of fraud, Internet crimes and cold cases.

Belt-tightening might also eliminate Drug Court, family-court services and mental-health court services, officials said at a news conference at the King County Courthouse.

This is a big deal. I recommend reading the full article.

ABA Pres. Calls for Death Penalty Moratorium

ABA President (and Seattle lawyer) William H. Neukom recently gave the commencement address at Duke Law School. While he was in North Carolina, he contributed an opinion piece to the Charlotte Observer ABA: Stop executions until... : Recent N.C. exonerations show need to examine Death Row cases, Charlotte Observer | 05/11/2008. (The editorial is also available on the ABA's site.)

2 Seattle men convicted under new state juvenile prostitution law

2 Seattle men convicted under new state juvenile prostitution law | Seattle Times Newspaper, June 5, 2008:

Two Seattle men accused of coercing two 17-year-old Bellingham girls to work as prostitutes were convicted Wednesday of a new state law that toughens the penalties for people who force juveniles into prostitution.

So what's the new law? It took me a while to find it, since I started by searching for "prostitution" and the law doesn't use that word. In fact, if you don't follow the cross-references, you can't tell what sort of crimes are getting enhanced sentences under the law. So, in case you're also curious, I'll save you the work: RCW 9.94A.533 has a new subsection:

(9) An additional one-year enhancement shall be added to the standard sentence range for the felony crimes of RCW 9A.44.073 [Rape of Child in the First Degree], 9A.44.076 [Rape of a Child in the Second Degree], 9A.44.079 [Rape of a Child in the Third Degree], 9A.44.083 [Child Molestation in the First Degree], 9A.44.086 [Child Molestation in the Second Degree], or 9A.44.089 [Child Molestation in the Third Degree], committed on or after July 22, 2007, if the offender engaged, agreed, or offered to engage the victim in the sexual conduct in return for a fee. If the offender is being sentenced for more than one offense, the one-year enhancement must be added to the total period of total confinement for all offenses, regardless of which underlying offense is subject to the enhancement. If the offender is being sentenced for an anticipatory offense for the felony crimes of RCW 9A.44.073 [Rape of Child in the First Degree], 9A.44.076 [Rape of a Child in the Second Degree], 9A.44.079 [Rape of a Child in the Third Degree], 9A.44.083 [Child Molestation in the First Degree], 9A.44.086 [Child Molestation in the Second Degree], or 9A.44.089 [Child Molestation in the Third Degree], and the offender attempted, solicited another, or conspired to engage, agree, or offer to engage the victim in [the] sexual conduct in return for a fee, an additional one-year enhancement shall be added to the standard sentence range determined under subsection (2) of this section. For purposes of this subsection, "sexual conduct" means sexual intercourse or sexual contact, both as defined in chapter 9A.44 RCW.

(emphasis added)

Judge declares mistrial in Haq case; Jewish Federation jury couldn't agree | Seattle Times Newspaper

Judge declares mistrial in Haq case; Jewish Federation jury couldn't agree | Seattle Times Newspaper, June 5, 2008:

Women with scars on their bodies and indelible memories of gunfire struggled to grasp an incongruous truth: After six weeks of testimony, thousands of pages of evidence and eight days of deliberation, a jury couldn't decide on the guilt or innocence of their attacker, Naveed Haq.

Not contesting that he was the shooter, Haq pled not guilty by reason of insanity. It appears the jury wrestled with the standard, which requires that the defendant be unable to perceive the nature and quality of the act with which he is charged; or that he was unable to tell right from wrong with reference to that act. A couple of days ago they sent a note to the judge asking for definitions of "nature" and "quality" and "right" and "wrong."

King County Prosecutor Dan Satterberg says that the office will prosecute Haq again.

The jury was deadlocked on all counts but one. With respect to one of the victims, the jury found Haq not guilty of attempted first-degree murder, but deadlocked on attempted second-degree murder, which can be charged again. (See RCW 9A.28.020, Criminal Attempt, RCW 9A.32.030, Murder in the First Degree, and RCW 9A.32.050, Murder in the Second Degree.)

Prosecutorial Ethic Symposium on TVW

Do you wish you'd come to The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng? Chin up! You can still hear the speakers, thanks to TVW. Choose any one of the five segments here. You can watch video, listen to audio, or download audio to your iPod or other MP3 player. If you prefer a bigger screen, you can also buy DVDs or keep an eye on the TVW schedule to see when it will be broadcast.

Pierce County Judges Reviewed

The Tacoma-Pierce County Bar Association commissioned Prof. David C. Brody (WSU Criminal Justice Program) to evaluate the performance of the 22 superior court judges in the county. He based his study, which was released in April, on the http://www.blogger.com/img/gl.link.gifABA's Guidelines for the Evaluation of Judicial Performance (2005). The full report (a 249-page PDF) is available here.

• Adam Lynn, WSU professor gathered information from attorneys and jurors, News Tribune, June 1, 2008.


• Adam Lynn, Jurors rate judges favorably on 14 criteria, News Tribune, June 1, 2008.


• Adam Lynn, Judging the judges: Bar Association survey rates Pierce County judiciary, News Tribune, June 1, 2008.

  None of the county's 22 judges achieved the ideal, and each judge drew at least one negative comment from the lawyers. Still, some get closer than others, the Bar Association's study revealed.
  
  The lawyers gave the highest ratings to the judges they think work the hardest across the spectrum of their jobs.
  
  Those who appear prepared, keep cases moving efficiently, stay abreast of changes in the law, make an effort to listen to both sides and maintain an even emotional keel got the best marks.
  
  * * *
  
  The judges who rated lowest in the four categories were criticized for being ignorant of the law, hotheaded, unprepared or inefficient.



• The judges released a statement in response to the study's release. They were sharply critical of the Tacoma-Pierce County Bar Association's release of anonymous comments and note that Prof. Brody advised against it. The judges respond, News Tribune, June 1, 2008.